A Border Search Doctrine Without Borders? A Court Pushes Back Against Searches of Laptops and Cellphones

by Alston & Bird
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Last year, the Supreme Court in Riley v. California (134 S. Ct. 2473 (2014)) recognized the unique characteristics of laptops and cellphones and held that police generally may not search the cellphone of an individual who has been arrested. However, federal law enforcement still routinely searches laptops and cellphones of international passengers at the border. Arguing that these devices are “containers” that may be searched at the border without any suspicion, Customs and Border Patrol on average searched the devices of 15 passengers per day between 2010 and 2013. While some courts find these searches constitutional, on May 8, 2015, in United States v. Kim (No. 13-0100, 2015 WL 2148070 (D.D.C. May 8, 2015)), one district court in the D.C. Circuit pushed back against this trend and suppressed evidence received from a laptop seized at the border.

The facts of this case are becoming more common (a similar search was addressed by a district court in the D.C. Circuit just five months earlier). An undercover investigation led Department of Homeland Security agents to believe that Jae Shik Kim was involved with previous shipments of controlled goods to Iran in violation of U.S. export controls. DHS flagged Kim’s name in the agency’s travel database and seized his laptop as he was boarding his flight from Los Angeles to South Korea. The next day, the laptop was sent to San Diego for a “border search of the laptop.” After an exhaustive search of the hard drive, DHS found incriminating emails. Kim argued the search violated the Fourth Amendment and moved to suppress the evidence.

The government argued that no suspicion was necessary to seize Kim’s hard drive since the search was a reasonable border search and, even if suspicion were required, the required suspicion was present. Attempting to avoid the issue of whether reasonable suspicion was required, the court first addressed whether DHS had reasonable suspicion. If it had reasonable suspicion, then the search would be lawful whether or not suspicion was required. Since the government had no objective manifestation Kim was engaging in criminal activity at the time of the search and only suspected Kim of past crimes, DHS did not have reasonable suspicion to search the computer.

The court then addressed whether the search was a “routine” border search that was not subject to any reasonable suspicion requirement. Following the Riley decision, the court weighed the national security concerns that underlie the enforcement of export control regulations against the degree of privacy invaded. The breadth of information contained in electronic devices caused the search to be “qualitatively and quantitatively different from a routine border examination.” Because the search was not routine and DHS agents did not have the required reasonable suspicion to seize Kim’s computer, the court suppressed evidence received from the hard drive.

Even though the court’s case-by-case inquiry did not provide much clarity for law enforcement, the decision creates some clear rules that may signal a shift towards greater scrutiny of similar searches at the border. For instance, the court questioned whether a computer shipped to another facility could be a “border search.” This imposes a practical limitation on border searches—they must actually be conducted at the border. Border searches must also be based on a suspicion of an ongoing crime at the time of the border crossing and should not be a fishing expedition for other past crimes. More importantly, the decision extended Riley’s recognition that laptops and cellphones are not merely “containers” for searches at the border. In Riley, the Supreme Court advocated for clear guidance for law enforcement, so if the government appeals the Kim decision, we may see the issue before the Supreme Court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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